Judge cautions prosecutor about bad mouthing Crumbleys: Don't taint jury pool

When it comes to how many victims were harmed in the deadly Oxford High school shooting, the judge agrees with the prosecution.

"There are certainly far more than four," the judge wrote in a court order Tuesday, referring to the number of students killed in the massacre.

But then the judge showed some deference to the parents of the shooting suspect, James and Jennifer Crumbley, who allege the prosecutor is still bad-mouthing them publicly — despite an existing gag order — by emailing case updates to more than 1,800 registered victims. Recently landing on Facebook, those updates, they say, contained "highly prejudicial" comments about them.

"The prosecutor's office should reasonably have known that an email sent to close to 2,000 victims could be disseminated to the media," Oakland County Circuit Judge Cheryl Matthews wrote in her order addressing the bulk email.

Judge concerned about 'misleading statements'

Matthews went on to raise concerns about the impact that the contents of the mass email may have on jury selection for the Crumbleys, who are the first parents in America charged in a mass school shooting. Their teenage son, Ethan, is charged with shooting up his school with a gun his parents bought him.

The Crumbleys, meanwhile, argue Oakland County Prosecutor Karen McDonald is tainting the jury pool, alleging she is constantly disseminating false and inflammatory information about them and did so in a Sept. 15 email that went out to about 1,800 addresses.

Matthews took issue with that email, noting that a "portion" of it "insinuates that the defendants have a duty to come forth with evidence and/or that the (Crumbleys) carry a burden of proof."

"The ability to seat an impartial jury and conduct a fair trial in this jurisdiction will be an arduous task, and is an overriding and paramount concern," Matthews wrote. "Misleading statements will likely diminish that ability."

At issue for the defense is how many victims the prosecutor's office is communicating with, and what the victims are being told.

The defense had argued the prosecution violated a July court order that prohibits both sides from making any statements about the case to the news media, including any statement that each side "knows or reasonably should know will be disseminated by the media." The mass email fell into that category, argued the defense.

The judge agreed, but opted not to sanction the prosecution.

The prosecution argues that it has a legal duty to update the victims about developments in the case under the Crime Victims' Rights Act, and that the law does not restrict its communications with the victims in any way. Under the act, “victim means any of the following: an individual who suffers direct or threatened physical, financial or emotional harm as a result of the commission of a crime.”

This could apply to the students who were in the school at the time of the shooting and their parents — many of whom have reported being traumatized by the events that unfolded on Nov. 30, 2021.

But the Crumbleys argue their case involves only four victims and their families, not the 1,800 tied to their son's case, and want the court to order the prosecution to send its updates only to the four victims' families, "not the massive audience" of their son's case.

Judge 'reluctant to restrict'

Matthews denied that request, noting she is "reluctant to restrict the prosecution's dissemination of important factual information to victims." She also wrote that "at this time, the court is not sanctioning the prosecution's conduct," but reiterated her duty to "protect the rights of the defendants, the people, the victims, and to maintain the integrity of these proceedings."

According to court records, one portion of the prosecution's email to victims that has raised red flags is an assertion that the Crumbleys have offered no proof that they were good parents, as they argued in a court filing that detailed their years of parenting.

"The prosecution team wants you to know that we have not seen any actual evidence to support (the parents') claims and the defense has not provided any evidence to the court," the prosecutor's office wrote to the victims in a statement published on Facebook.

"It implies that the defense is lying, or making up information," lawyers for the Crumbleys have argued, stressing they're tired of the prosecution acting as if it is the only "truth-teller" in this case.

The judge, meanwhile, has cautioned the prosecutor's office to be more careful.

"There is an absence of authority to support the proposition that the Crime Victims' Rights Act requires a mass communication each time some undetermined number of victims may be operating under some misapprehension," Matthews wrote. "Although the prosecution alleges that 'responding timely to hundreds of calls and emails would be impossible,' the court is hopeful that the prosecutor's office can employ a more surgical response in the future, should the need arise."

The Crumbleys are charged with involuntary manslaughter for allegedly buying their son the gun that police say was used in the shooting. Prosecutors allege the parents ignored a mentally ill son who was spiraling out of control, and instead of getting him help, bought him a gun.

The Crumbleys have denied responsibility, arguing they had properly secured the weapon in a locked cabinet in their home and had no way of knowing their son would carry out a mass shooting.

The Crumbleys are due back in court on Oct. 28 for a hearing during which their lawyers will challenge the prosecution's mass shooting experts.

The prosecution wants to use the Pathway to Violence theory at trial, maintaining that a toxic family life and parental negligence turned their son into a killer, and that he didn't just "snap" when he carried out the shooting.

The prosecution plans to call experts to support this theory, though the defense plans to challenge their admissibility, arguing the Pathway to Violence theory is a "relatively novel" area of study with no widely accepted scientific consensus.

Ethan Crumbley, who was 15 at the time of the shooting, is locked up on first-degree murder charges. He is in the same county jail as his parents, though the family is prohibited from communicating.,

Contact Tresa Baldas: tbaldas@freepress.com

This article originally appeared on Detroit Free Press: Judge cautions prosecutor about bad-mouthing Crumbley parents